Citation: SafeWork NSW v Prime Marble & Granite Pty Ltd [2024] NSWDC 17
Court: District Court of New South Wales
Date: 13 February 2024
Judge: Russell SC DCJ
Background
SafeWork NSW prosecuted a manufactured stone business for alleged breaches of its work health and safety duties under the Work Health and Safety Act 2011 (NSW). The charges related to two workers, a labourer/polisher and a machine operator, who were each exposed to high levels of respirable crystalline silica (RCS) dust over extended periods during their employment. Both workers subsequently developed silicosis, a serious and potentially fatal lung disease caused by inhaling silica dust.
The prosecution alleged that the employer failed, over periods spanning several years, to take reasonably practicable steps to protect its workers from RCS exposure, contrary to sections 19 and 32 of the WHS Act. The summonses were filed on 30 March 2023.
The defendant brought interlocutory motions to dismiss the proceedings on the basis that they were filed outside the two-year limitation period in section 232(1)(a) of the WHS Act. The defendant pointed to a workplace hygiene monitoring report from 2017 and an Improvement Notice from 2018, arguing these documents put the regulator on notice of the alleged offences well before March 2021.
Legal Issues
- Whether the two prosecutions were brought within the two-year limitation period under section 232(1)(a) of the WHS Act
- At what point the regulator had sufficient notice of the specific offences charged so as to start the limitation clock running
- Whether a single day of air monitoring testing in 2017, which recorded RCS exceedances, constituted notice of the offences charged against the defendant in relation to these two specific workers
Decision
Section 232(1)(a) of the WHS Act provides that proceedings for a WHS offence may be brought within two years after the offence "first comes to the notice of the Regulator." The court applied the test from the Queensland Court of Appeal in Witheyman v Van Riet [2008] QCA 168, which holds that an offence first comes to the regulator's notice when it has information giving reasonable grounds to believe the offence has been committed.
The court distinguished carefully between the general knowledge of elevated RCS levels at the worksite in 2017 and 2018, and knowledge of the specific offences charged. The offences charged related to the exposure of Mr Geng and Mr Zhang specifically, and to their development of silicosis as a result of long-term exposure during their employment. The 2017 monitoring report and 2018 Improvement Notice said nothing about those two workers in particular, and said nothing about sustained long-term exposure sufficient to cause silicosis.
The court found that it was not until the regulator received iCare material in 2021 that it became aware that these two workers had developed silicosis, and that the disease had resulted from significant long-term silica exposure during their time with the defendant. That was the point at which the regulator had notice of the actual offences charged. Russell SC DCJ noted that the 2017 air monitoring captured only a single day, and could not by itself inform the regulator that the exposure standard was being breached on a long-term basis sufficient to place any worker at real risk of silicosis.
The court dismissed both motions, finding that the summonses were filed within the prescribed two-year period. Russell SC DCJ also indicated that, absent any reason to the contrary, costs of the motions would follow in favour of the prosecution.
Orders Made
- The defendant's Notice of Motion filed 4 December 2023 was dismissed in each matter.
- Exhibits were returned.
- Costs of the motions were reserved, to be dealt with at the conclusion of proceedings (with the court indicating no present reason why the defendant should not pay those costs).
Key Takeaways
- Under section 232(1)(a) of the WHS Act, the two-year limitation period for prosecution runs from when the regulator has information giving reasonable grounds to believe the specific offence charged has been committed, not merely when it has general knowledge of hazardous workplace conditions.
- The District Court drew a clear distinction between awareness of a workplace hazard and awareness of an identifiable offence against particular workers. Knowledge of one does not automatically constitute knowledge of the other.
- A single day of air monitoring that records WES exceedances does not, of itself, give the regulator notice of an offence involving sustained long-term exposure causing or risking silicosis in specific workers.
- Where the specific elements of a charged offence, including identification of the affected worker and the nature and duration of their exposure, only become known through later materials such as workers compensation records, the limitation clock runs from that later point.
- In dismissing the motions, the court signalled that the fact inspections and improvement notices were issued but not followed up did not accelerate the start of the limitation period, even though the court described that lack of follow-up as "unfortunate."
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19, 30, 32, 232(1)(a)
- Work Health and Safety Regulation 2017, Sch 14
- Criminal Procedure Act 1986 (NSW), s 257C(1)
Cases:
- Witheyman v Van Riet [2008] QCA 168